United States District Court, C.D. Illinois
MYERSCOUGH UNITED STATES DISTRICT JUDGE
proceeds pro se from his detention in the Rushville Treatment
and Detention Center pursuant to the Illinois Sexually
Violent Persons Act. He pursues a constitutional claim that
the facility provided him inedible food by serving
mechanically separated chicken which arrived in boxes marked
“for further processing only.” He also pursues a
constitutional claim arising from the alleged unsanitary food
storage, preparation, and serving practices at the facility.
the Court are Defendants' motions for summary judgment.
On this record, summary judgment is warranted for Defendant
Simpson, the grievance examiner. The other Defendants'
motions are denied with leave to renew because the Court
needs more information and briefing.
December 20, 2010, four residents detained in the Rushville
Treatment and Detention Center filed a purported class action
challenging, as is relevant to this case, the serving of
mechanically separated chicken from boxes marked “for
further processing only.” Smego v. Ill. Dept. of
Human Serv., 10cv3334 (C.D. Ill.). On June 2, 2011, the
plaintiffs' motion for class certification in that case
was denied because they were pro se. (10cv3334, d/e 43, p.
2.) A flood ensued of over 60 additional cases filed by some
80 other residents regarding the same issues.
additional plaintiffs were joined into the original case, and
Plaintiff Richard Smego was designated as spokesperson.
Id. d/e 336. The Court was eventually able to
recruit pro bono counsel, but only for the plaintiffs in the
original case. The claims of the rest of the plaintiffs were
severed and stayed, with the hopes that the resolution of the
original case might resolve the other cases or help guide the
Court in resolving the other cases.
judgment was denied in the original case, and then the
original case settled in July 2014. Part of the settlement
was an agreement that the mechanically separated chicken
labeled “for further processing only” would no
longer be served at the facility.
the original case settled, the plaintiffs in the other cases
were given an opportunity to file an amended complaint if
they still wished to proceed with their claims. Six of those
cases remain, including this one, which is now at the summary
Standard Applicable to Civil Detainee's Claim
Fourteenth Amendment due process clause governs rather than
the Eighth Amendment because Plaintiff is a civil detainee,
not a prisoner serving a sentence. The Supreme Court stated
in Youngberg v. Romeo that "[p]ersons who have
been involuntarily committed are entitled to more considerate
treatment and conditions of confinement than criminals whose
conditions of confinement are designed to punish." 457
U.S. 307, 322 (1982). This difference was reiterated by the
Seventh Circuit in Hughes v. Scott, 816 F.3d 955,
956 (7th Cir. 2016); see also McGee v.
Adams, 721 F.3d 474, 480 (7th Cir. 2013)(citing
Youngberg but noting that “the Supreme Court
has not determined how much additional protection civil
detainees are entitled to beyond the protections afforded by
the Eighth Amendment bar on cruel and unusual
punishment.”); Rice ex rel. Rice v. Correctional
Medical Services, 675 F.3d 650, 664 (7th Cir.
2012)("[T]he Supreme Court has not yet determined just
how much additional protection the Fourteenth Amendment gives
to pretrial detainees.").
application, the Fourteenth Amendment standard thus far
appears indistinguishable from the Eighth Amendment standard
on conditions of confinement claims. For example, the Seventh
Circuit has stated that a conditions of confinement claim by
a civil detainee requires an objectively serious deprivation
and deliberate indifference by the defendant. Sain v.
Wood, 512 F.3d 886, 894 (7th Cir. 2008). This is the
same standard governing an Eighth Amendment conditions of
confinement claim by a prisoner. The Seventh Circuit more
recently confirmed in Smith v. Dart, 803 F.3d 304,
310 (7th Cir. 2015), that “[w]e have held
that there is little practical difference, if any, between
the standards applicable to pretrial detainees and convicted
inmates when it comes to conditions of confinement claims,
and that such claims brought under the Fourteenth Amendment
are appropriately analyzed under the Eighth Amendment
the Seventh Circuit has also recently acknowledged the
difficulty of defining the legal standard applicable to
detainees, noting the “shifting sands of present day
case authority.” Werner v. Wall, 836 F.3d 751,
759 (7th Cir. 2016). In Smith v. Dart,
even though confirming the appropriateness of relying on
Eighth Amendment cases, the Seventh Circuit stated in dicta
that the subjective element requires a
“‘purposeful, a knowing, or a possibly reckless
state of mind, '” arguably a lower hurdle than
deliberate indifference. 803 F.3d 304 n. 2 (quoted cite
omitted). That dicta was ultimately referring to the Supreme
Court case of Kingsley v. Hendrickson, 135 S.Ct.
2466, 2473 (2015), which held that a defendant's
subjective state of mind in a pretrial detainee's
excessive force claim was relevant only to the extent that
the defendant's actions were “purposeful or
knowing.” After Kingsley, though, the Seventh
Circuit has continued to rely on the deliberate indifference
standard to pretrial detainees' claims for lack of
medical care. See, e.g., Daniel v. Cook County, 833
F.3d 728, 732-33 (2016).
case may require the Court determine what “additional
protections” are afforded a civil detainee as compared
to a prisoner in relation to conditions of confinement. The
question might be avoided as to the Defendants employed by
the State if they are entitled to qualified immunity, but
Defendant Dredge, an employee of a private contractor, does
not appear to be entitled to assert qualified immunity.
See Zaya v. Sood, 836 F.3d 800, 807 (7th
Cir. 2016)(“The Supreme Court has held that employees
of privately operated prisons may not assert a
qualified-immunity defense. . . . We have construed that
holding to extend to employees of private corporations that
contract with the state to provide medical care for prison
inmates.)(citations omitted). Defendants will be directed to
address this issue in more detail in their renewed motions
for summary judgment, addressing not only cases in this
Circuit but also any cases on point in other Circuits.